The USFS has undermined their own argument by making exceptions based on the purpose of the filming. Apparently only commercial filming hurts ecosystems, not amateur photography. And apparently commercial filming that has positive messages about the USFS are OK too. Its just commercial filming that goes into a beer company ad that hurts ecosystems. You see the problem. If it's the use itself that is the problem, then the USFS should be banning the use altogether. By banning some photography but not all based on the content and use of that photography, that strikes me as a first amendment issue.

Despite working with the USFS on lands management every day, this policy was new to me. I hypothesized

[There is a] large group in the USFS that is at best skeptical and at worst hostile to commercial activity. They would explain these rules, at least in private, by saying that anything commercial is by definition antithetical to the very concept of wilderness that they hold in their heads, and that thus all commercial activity needs to be banned in the wilderness because it is inherently corrupting.

Reading Overlawyered, I saw this US Forest Service quote from the Oregonian to explain their position on commercial photography:

Liz Close, the Forest Service's acting wilderness director, says the restrictions have been in place on a temporary basis for four years and are meant to preserve the untamed character of the country's wilderness.

Close didn't cite any real-life examples of why the policy is needed or what problems it's addressing. She didn't know whether any media outlets had applied for permits in the last four years.

She said the agency was implementing the Wilderness Act of 1964, which aims to protect wilderness areas from being exploited for commercial gain.

"It's not a problem, it's a responsibility," she said. "We have to follow the statutory requirements."

So it appears that the purpose of the Wilderness Act is interpreted by the USFS as "protect wilderness areas from being exploited for commercial gain."

But the Wilderness Act makes just a brief mention of commercial activity (It was written back in the day when laws did not have to be 2000 pages long, so you can read the who thing here). Its main purpose is to keep the lands wild and the ecology as free as possible from man's intervention

In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. For this purpose there is hereby established a National Wilderness Preservation System to be composed of federally owned areas designated by the Congress as "wilderness areas," and these shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, the preservation of their wilderness character, and for the gathering and dissemination of information regarding their use and enjoyment as wilderness...

A wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. An area of wilderness is further defined to mean in this Act an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

There is nothing in this that in any way shape or form should be affected by photography (unless the photography has some sort of heavy footprint, like making a Hollywood movie with hundreds of people and equipment and catering trucks, etc.).

The Wilderness Act is not primarily about protecting the Wilderness from commercial gain. It is about protecting the natural operation of ecosystems from intervention of any sort by man. Commercial activity is barely mentioned, and only as a minor aside deep into the legislation. But many US Forest Service employees have an antipathy to commercial activity and have sort of reinterpreted it in their mind as being an anti-commercialism act. Here are the only mentions of commercial activity in the law:

Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area. ...

Commercial services may be performed within the wilderness areas designated by this Act to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the areas.

In this usage (I am not an attorney so there is likely a long history of how the term "commercial enterprise" is understood in the law) my sense is this means that people are not to be conducting commerce -- trading goods and services for money- within the boundaries of the wilderness area. Essentially, they don't want a gift shop or McDonald's there. Grouped with the bit about roads, this is a paragraph about facilities and equipment and having a footprint.

So is a lone person taking pictures a commercial enterprise within the area? I doubt it. The actual commerce is conducted outside the park and there is nothing about photography that impairs the wilderness nature of the park. My interpretation is that taking pictures is OK but setting up a photography store is forbidden. But by the US Forest Service's definition, I suppose they should also ban people from collecting material for a book. If I walk through the wilderness area taking notes for a book I want to write, and then leave the area and write it and sell it, I am not sure how this is any different from commercial photography. And does this mean that I can't wear any clothes or bring any equipment into the wilderness area that I purchased commercially?

PS- Beyond a skepticism about capitalism, there is an other reason public lands people might want to shortcut the Federal Wilderness Act as "preventing commercial activity" -- it lets them off the hook. The Wilderness Act was about preventing meddling in the ecosystem (an impossible goal, but we will leave that for another day) and this applied to all groups -- commercial, government, educational. By shortcutting the Act as being about commerce, it helps folks forget that the same strictures should apply to agency personnel as well. I was up in Yellowstone listening to discussions of reintroduction of the wolf and the ongoing killing of thousands of non-native fish in Yellowstone Lake and various streams. The goal of these interventions is to reverse past interventions, but even so they strike me as violations of the Federal Wilderness Act.

The news has been zooming around the Internet that the US Forest Service (USFS) is going to require permits to take pictures on public lands. It was the first I had heard of this, which is odd in one sense because I actually operate tens of thousands of acres of US Forest Service lands, and in fact operate the ones with the most visitation (on the other hand, we are often the last to hear anything from the USFS).

So, knowing that the Internet can be a huge game of "telephone" where messages quickly get garbled, I went to the regulation itself. As usual, that did not help much, because it is so freaking hard to parse. Reading between the lines, here is what I think is going on:

The regulations don't apply to all USFS lands, but to the federally-designated wilderness areas they manage. Even this is confusing, since the permitting authority does not apply just to wilderness areas, but to anywhere in the USFS. But even the wilderness areas constitute a lot of land, and often the most scenic.

Apparently, the regulations have been in place for 4 years and this is just an extension and clarification

Ostensibly, the regulations apply only to commercial filming, but how the USFS is going to distinguish between a commercial photographer and well-equipped amateur, I have no idea. The distinction seems to lie in what the photography will be used for, and since this use happens long after the individuals have left the land, I am not sure how the USFS will figure this out. Is the US Government going to start suing magazines for nature pictures, claiming a copyright on the scenery? What happens if I take it for my own use, then discover I have an awesome picture and decide to sell it. It is hard to write laws that depend on reading people's minds in determining if an act is legal.

The Federal Wilderness Act gives the government a lot of power to limit uses in a designated wilderness area. Motorized vehicles and tools are banned, as were bicycles more recently. My company operates in only one wilderness area, a canoe run at the Juniper Springs recreation area in Florida. If a tree falls across the stream, we have to float down in canoes and take it out with hand axes. We have to open and inspect coolers of those going down the run to make sure no banned items are in them. In other words, wilderness areas definitely have a higher level of restrictions than the average public land.

As to the First Amendment issues, well folks like Ken White at Popehat have taught me that it is very very dangerous for the uniformed (ie me) to pontificate on complex First Amendment issues. I am sure the USFS would say that they are not interfering with free expression, just banning a use that could be dangerous in the wilderness. There are a few problems with this:

The USFS has undermined their own argument by making exceptions based on the purpose of the filming. Apparently only commercial filming hurts ecosystems, not amateur photography. And apparently commercial filming that has positive messages about the USFS are OK too. Its just commercial filming that goes into a beer company ad that hurts ecosystems. You see the problem. If it's the use itself that is the problem, then the USFS should be banning the use altogether. By banning some photography but not all based on the content and use of that photography, that strikes me as a first amendment issue.The best parallel I can think of is in Venezuela. There, the government claimed a paper shortage required it to shut down certain printing to conserve paper, and then proceeded to shut down only the newspapers it did not like. I suppose it could claim that it was not censoring anyone, just taking steps to deal with the newsprint shortage. Similarly the USFS claims it is not limiting anyone's first amendment rights, it is just protecting the wilderness form a dangerous use.

A few years ago, the USFS tried to reverse an expensive mistake it had made. The US government issues lifetime senior passes that allow free entry and half off camping for seniors. This is an expensive giveaway, paid for by taxpayers. But the USFS had gone further, requiring that concessionaires like our company also accept the pass and give half off to seniors. While giving half off to seniors at government-run campgrounds had to be funded by taxpayers, concessionaires only have use fees to fund operations. So to give half off to seniors, prices have to be raised to everyone else. The senior discount requirement was raising prices (and still does) $4-$5 a night for every other camper.

Well, long story short (too late!) the US Forest Service folded under the organized pressure of senior groups. And my guess is that they will do so again here. Unlike with the National Park Service which has a clear mandate and strong public support, few people get misty-eyed about the USFS, which means they are always sensitive to bad news that might hurt them in the next budget fight.

PS -- Is someone going to go back and bill Ansel Adams' estate? Isn't he exactly the sort of commercial nature photographer that this rule is aimed at?

Update: I have talked to a number of people in the know on this. Apparently what began as a desire merely to stop high impact filming in the wilderness -- full Hollywood movie sets with catering trucks, etc. -- has gotten taken over by a large group in the USFS that is at best skeptical and at worst hostile to commercial activity. They would explain these rules, at least in private, by saying that anything commercial is by definition antithetical to the very concept of wilderness that they hold in their heads, and that thus all commercial activity needs to be banned in the wilderness because it is inherently corrupting.

I find it funny that Obama used the phrase "completely unnecessary damage" vis a vis the shutdown, since that seems to have been his staff's explicit marching orders: Inflict completely unnecessary damage. It was pretty clear there was never justification for the Administration to close our privately-funded parks. Over the last week, case after case in court overturned similar orders in the NPS and USFS. I just wish our TRO request had come to court a bit sooner so we could have had the precedent in hand.

As you know (and am sure are tired of hearing about) the US Forest Service has closed all our privately-funded and operated parks on their land. These include a number of very popular campgrounds and parks in the Sedona area.

Today we got a call from the County Sheriff saying that visitors were parked all over the highway and walking into our (closed) concession areas. He said they were creating a serious public safety problem, particularly at Call of the Canyon** (also known as West Fork) and Crescent Moon Ranch (also known as Red Rock Crossing). I told him that I had specifically raised this issue about these specific sites all the way up to Cal Joyner, Regional head of the USFS in Arizona, New Mexico and parts of Oklahoma and Texas. And the US Forest Service had closed us anyway. The Sheriff begged us to reopen the facilities and I told him I would love nothing more but my contracts were suspended and I had no legal basis for doing so.

So, apparently, the sheriff cut the cable on the facilities and is letting cars into the facilities, creating even more chaos. There is no one there to monitor safety, provide security, clean the bathrooms, pick up trash, etc. -- all the things we do every day without taking one dollar of Federal money, if only the US Forest Service would let us. I am actually happy the Sheriff is giving visitors access. These facilities are particularly lovely in the Autumn. But the US Forest Service needs to send 15 or 20 people to help manage them, but that would cost them money they do not have. Or they could just let us get back to operating the sites, which does not cost them one dime.

** The West Fork of Oak Creek Canyon is so beautiful in the fall that Zane Grey immortalized it in a novel called "Call of the Canyon." The trailhead and parking area are cramped and require a lot of active management even when staffed to keep them operating safely.

Many, many emails have encouraged me to disobey the order and keep the parks open for the public. There are three reasons why I have chosen not to do so.

1. Respect for Contract: In my 25 or so lease contracts with the US Forest Service (the USFS insists on calling them "special use permits" but legally they are essentially commercial leases), the contract language gives the Forest Supervisor of each Forest the right to suspend or terminate the contract for virtually any reason. Yeah, I know, this is a crappy lop-sided contract provision, but welcome to the world of working with the Federal government. So each Forest Supervisor has the right to suspend our lease. BUT....

Historically, the USFS has only rarely used this contract power, and its use has generally been in one of two situations: a) an emergency, such as a forest fire, that threatens a particular recreation area or b) a situation where the recreation area cannot physically be used, such as when it has been destroyed by fire or when it is being refurbished. Never, to my knowledge, has the USFS used this power to simultaneously close all concession operations, and in fact in past shutdowns like 1995 and 1996 most all concessionaires stayed open.

Budget considerations alone cannot justify the closure order, as USFS concessionaires do not use Federal funds and in fact pay money to the Treasury. Closing us actually reduces the income to the Treasury as we pay our concession fees as a percentage of revenues. Further, the USFS does not have any day-to-day administration responsibilities for these parks. The only semi-regular duty is sometimes to provide law enforcement backup, but USFS law enforcement officers are still at work (we know this because they showed up to post our operations as closed).

The Administrative Procedure Act makes it illegal for a government agency to make a decision that is arbitrary, capricious or an abuse of discretion. To this end, the USFS has not actually closed the Forests and still allows camping in the Forests. Thus, the USFS considers it safe for people to be camping in the Forests and that doing so during the shutdown creates no risk of resource or property damage. In contrast, the USFS has made the decision that it is not safe to allow camping in developed campsites run by private concessionaires. The decision that developed campgrounds run by private companies must close, but undeveloped camping can continue, makes no sense and is arbitrary, capricious and an abuse of discretion. If anything, closing developed areas but allowing dispersed camping increases risks to public safety and for resource damage as developed concession areas are staffed and trained to mitigate such risks (that's the whole point of having developed recreation in the first place).

While we feel good we have a winning argument, this is a complicated point that does not lend itself well to civil disobedience, but we are taking it to court and seeking an injunction to the closure.

2. The wrong people would go to jail. Civil disobedience has a long and honorable history in this country. But the honor of such an act would quickly go out the window if I were to commit an act of defiance but others would have to go to jail. We run over a hundred sites. Telling my people to remain open would simply lead to getting my employees thrown in jail for trusting me and following my instructions. That would be awful. Just as bad, we can see from examples in the National Park Service that such disobedience would potentially subject my customers to legal harassment. It's not brave or honorable for me to be defiant but to have others pay the cost.

3. I could lose everything. I don't want to seem weak-kneed here, but I would be dishonest not to also raise the small but critical point that I have almost every dollar I own tied up in this company, which does over half its business in the National Forest**. My retirement and all my savings are in this one basket. I would likely risk an arrest and a few hours in jail plus the price of bail and months of court appearances to make a point here. I am not ready to go all-in with everything I own, not when there are other legal avenues still available. If that makes me a wimp, so be it.

** you can be assured that the moment I have one minute of extra time we are going to be working on diversifying away from the US Forest Service as much as possible.

We are preparing to go to court to reopen privately-funded parks in the US Forest service that take no Federal money, yet have recently been closed due to budget shortfalls.

Our USFS contracts give the local Forest Supervisor the right to suspend the contract. However, historically, the USFS has only rarely used this contract power, and its use has generally been in one of two situations: a) an emergency, such as a forest fire, that threatens a particular recreation area or b) a situation where the recreation area cannot physically be used, such as when it has been destroyed by fire or when it is being refurbished. Never, to my knowledge, has the USFS used this power to simultaneously close all concession operations, and in fact in past shutdowns like 1995 and 1996 most all concessionaires stayed open.

Budget considerations alone cannot justify the closure order, as USFS concessionaires do not use Federal funds and in fact pay money to the Treasury. Closing us actually reduces the income to the Treasury as we pay our concession fees as a percentage of revenues. Further, the USFS does not have any day-to-day administration responsibilities for these parks. The only semi-regular duty is sometimes to provide law enforcement backup, but USFS law enforcement officers are still at work (we know this because they showed up to post our operations as closed).

The Administrative Procedure Act makes it illegal for a government agency to make a decision that is arbitrary, capricious or an abuse of discretion. To this end, the USFS has not actually closed the Forests and still allows camping in the Forests. Thus, the USFS considers it safe for people to be camping in the Forests and that doing so during the shutdown creates no risk of resource or property damage. In contrast, the USFS has made the decision that it is not safe to allow camping in developed campsites run by private concessionaires. The decision that developed campgrounds run by private companies must close, but undeveloped camping can continue, makes no sense and is arbitrary, capricious and an abuse of discretion. If anything, closing developed areas but allowing dispersed camping increases risks to public safety and for resource damage as developed concession areas are staffed and trained to mitigate such risks (that's the whole point of having developed recreation in the first place).

But there appears to be more to this story. There are several groups that operate parks on National Forest lands under agreements nearly identical to ours who appear to have been exempted from the closure order.

Large corporations that run ski resorts and certain other large resort properties on National Forest lands have been exempted. It should be noted that ski resorts operators, unlike campground operators, have full-time lobbyists stationed in Washington and can afford in-house staff lawyers to fight these kinds of orders. My guess is that knowing they would immediately get sued if they ordered larger private firms to close, the USFS focused only on smaller and more helpless private firms.

Many state parks, including at least 3 in Arizona and many in California, are actually on US Forest Service land and operate through special use permits almost identical to those we have with the USFS, yet none of these parks have been asked to close (Slide Rock and Fool Hollow State Park in Arizona and Burney Falls SP in California are just a few examples of state parks that operate on US Forest Service land).

In other words, the US Forest Service seems to be issuing closure orders inconsistently, targeting only private operators who are too small to fight back. The USFS has not been especially clear how they are justifying this order (perhaps since it can't be justified) but they have hinted that it is either because a) they can no longer "administer" these contracts, whatever that means since they have no day-to-day administration responsibilities or b) they are removing everyone from Federal lands. Note, though, that both explanation "a" or "b" would apply equally to ski resorts and state parks operating on Federal land leases which are not being closed.

I will also add that the USFS is continuing to allow individuals to hike and camp in non-developed areas of the forests. I have no problem with this -- there is no reason for the USFS to halt public access to public land just because their employees are getting a paid vacation. But this just highlights how crazy and inconsistent their policies are. People can camp in the National Forest everywhere except in developed campgrounds where private companies who take no Federal money normally have employees on site to clean up trash and provide security and prevent fires. Many campers take good care of the land but some do not, and driving these campers out of privately-operated developed sites into dispersed areas where their impact cannot be mitigated is just another way these actions increase rather than decrease costs.

Congress has not provided appropriations for fiscal year 2014. Pursuant to applicable legal requirements in the Antideficiency Act and Attorney General opinions addressing agency operations in the absence of appropriations, the Forest Service is unable to administer federally-owned recreation facilities. Consequently these facilities will be shut down and posted accordingly with signs provided, with gates locked where they exist, restrooms locked, and water systems shut down. Visitors in occupied sites would be given 48 hours to vacate, with the area shut down as the last visitor leaves, not to exceed 48 hours.

In other words, we pay all the bills, run the parks in an independent manner, have no USFS people stationed in the parks, but we have to shut down because the Forest Service can no longer "administer" the facilities. Huh? What day-to-day administration is necessary. Remember that the USFS itself did not think their presence was necessary, originally confirming on Tuesday that we would stay open as we had in all past shutdowns.

We often go weeks and months in these facilities without ever seeing a USFS manager. The USFS considers it so important to have staff available to "administer" these facilities that none of their recreation personnel work on weekends or on holidays, by far and away the busiest and most difficult times in these facilities.

PS- I see the part about the Attorney General. Did Eric Holder decide to close us? Doesn't he know that poor and minorities disproportionately use public vs. private recreation? Isn't that a disparate impact issue in closing us?

One interesting note - many state parks operate on Federal land using almost exactly the same king of lease contract (called a special use permit) we have to privately operate parks and campgrounds. If private parks with this type of lease with the USFS have to close, shouldn't state parks as well? For example, both Slide Rock SP in Arizona and Burney Falls SP in California operation using the same kind of lease as we do.

Mr. Meyer:
I just wanted to thank you for the letter you wrote to our senators and congressmen.

My fiance and I are scheduled to be married this Saturday at Red Rock Crossing. On Tuesday, I called and was told that the park would be open and unaffected by shutdown.

As you can imagine, the news today has me very worried. We have spent literally thousands of dollars to have a special couple of hours in the park with our families who are flying in from all over the United States and the thought of not being able to have our wedding in our dream location is upsetting to say the least.

I hope and pray that your parks and campgrounds continue to stay open.

Red Rock Crossing is a privately-operated campground that the USFS has slated for closure Friday not because it uses too much Federal money (it in fact uses none and pays rent to the Treasury) but because the White House apparently wants to artificially increase the cost of the shutdown. Well, you got your wish Mr. President.

PS- for those who are concerned, we are going to find a way to help this guy get married, even if I have to sneak them into the facility myself.

Our concession operations on Federal lands are still mostly open today (we had two US Forest Service local offices ask us to close, but these are both offices that have a tradition of interpreting the rules in odd ways).

By all the rules, being open to the public is the right decision. We are tenants on US Forest Service land and operate entirely outside of the government budget, receiving no money from the government and we employ no government workers. No government employee has a duty station in any of the parks we operate. There is no more reason to close our operations than to, say, ban cars from Federal highways during a shutdown.

However, apparently we have been told by several local folks in the Forest Service that the higher ups (this tends to mean folks up in the Administration) are re-evaluating our status. I do not know what is going on today, but in the past this has often meant that the administration is considering closing us to make the government closure as painful as possible. After all, as I have written here and here, parks closures seem to be one of the few things anyone notices in a government shut down.

Update: Our most recent guidance: "1. The Forest Service is allowing concessionaires to continue to operate as long as no Forest Service personnel is needed to ensure safety." It looks like we may have to close a few sites that are dependent on USFS operated water systems, but otherwise most of our locations will be open. I am hoping to get out a press release and update our web site but things are still fluid this morning.

Update #2: Definitely still open everywhere but in one location (Laguna Mountain, CA) where we depend on a USFS-operated water system that will close. no closure press release 2013

Many of your know that my company operates public parks. So I see a lot of different approaches to park design and construction. Of late I have been observing a trend in "environmental sustainability" in park design that is actually the opposite.

The US Forest Service has built more campgrounds, by far, than any other entity in the world. For decades, particularly in the western United States, the USFS had a very clear idea about what they wanted in a campground -- they wanted it to be well-integrated with nature, simple, and lightly developed. They eschewed amenities like pools and playgrounds and shuffleboard. They avoided building structures except bathroom and shower buildings. The camp sites were simple, often unpaved with a table and fire ring and a place for a tent. They used nature itself to make these sites beautiful, keeping the environment natural and creating buffers of trees and natural vegetation between sites. I have never seen an irrigation system in a western USFS campground -- if it doesn't grow naturally there, it doesn't grow.

This has proven to be an eminently sustainable design. With the exception of their underground water systems, which tend to suck, they are easy to maintain. There is not much to go wrong. The sites need new gravel every once in a while. Every 5-10 years the tables and fire rings needs replacement, hardly a daunting task. And every 20-30 years the bathrooms needs refurbishment or replacement. The design brilliance was in the placement of the sites and their integration with the natural environment.

Over the last several months, I have been presented with plans from three different public parks agencies for parks they want to redevelop. Each of these have been $10+ million capital projects and each one had a major goal of being "sustainable." I have run away from all three. Why -- because each and every one will be incredibly expensive and resource intensive to operate and of questionable popularity with the public. Sustainability today seems to mean "over-developed with a lot of maintenance-intensive facilities".

What each of these projects has had in common are a myriad of aggressively architected buildings - not just bathrooms but community rooms and offices and interpretive centers. These buildings have been beautiful and complex, made from expensive materials like stainless steel and fine stone. They have also had a lot of fiddly bits, like rainwater collection and recycling systems and solar and windmills. They have automatic plumbing valves that never seem to work right. The grounds have all been heavily landscaped, with large lawns that require water and mowing, with non-native plants that need all kinds of care. Rather than a traditional sand pad for tents they have elaborate wooden platforms.

The plans for these facilities are beautiful. They win awards. In fact, I am increasingly convinced that that is their whole point, to increase prestige of the designer and the agency that hired them through awards. But they make no sense as a recreation facility. In 10 years, they will look like hell. Or sooner, since one agency that is in the process of spending a $22 million bond issue on 5 campgrounds seems to not have one dollar budgeted for operation and maintenance.

These things actually win awards for sustainability, which generally means they save money on one input at the expense of increasing many others. One design got attention for having grass on the roofs, which perhaps saved a few cents of electricity at the cost of having to irrigate and mow the roof (not to mention the extra roof bracing to carry the load). I briefly operated a campground that had a rainwater recovery system on the bathrooms, which required about 5 hours of labor each week to keep clean and running to save about a dollar of water costs.

The USFS figured out a way to do this over 30 years ago, and only now are other agencies starting to copy the model (California State Parks just started using it this year, for example). The USFS, like most agencies, charges a fee for the public to visit certain parks or to use campgrounds. They found that they could not cover their high operating costs with just these user fees, and so had to use a lot of general fund money to keep the parks open. Many complain that public recreation user fees are too high, but typically they cover only about half the agency's costs to run the park. When general fund money started to go away, the USFS faced park closures, exactly the situation today in many state and local parks agencies.

The USFS found that private operators with a lower cost position and more flexibility could keep these parks open using just the user fees, and in fact actually pay the USFS some rent. So instead of having to subsidize the park's operation with tax money, the parks began to generate funds for the USFS.

It took decades to get this right. The USFS made mistakes in how they grouped parks into contracts, how they wrote the contracts, and how they did oversight. The private companies made operating mistakes and some failed financially at awkward times, since when this program started there did not exist a pool of experienced operators. But over the years, many of these problems have been worked out, and most privately-run sites operate to a standard at least as high as publicly-run parks. Here in Arizona, three of the top five highest-rated public campgrounds are operated by private companies in the USFS program.

At this conference, both private operators and agency people experienced with this model will describe how it works as well as years of hard-won lessons learned.

The conference is free to most government agency officials, academics, and media and we have obtained a really inexpensive $49 hotel rate (since by definition the agencies most interested in the model don't have much money). The web site that describes the agenda and logistics is here. Readers of this site who don't fit one of these categories but would still like to attend can email me at the link in the above site and I will get you in.

It seems to me that whenever there is a threat of a government shutdown, it’s portrayed as just this side of a tsunami-level disaster. When government workers – teachers, sanitation workers, etc – go on strike, it’s portrayed as the middle-class worker sticking up for himself. Why is it that a government shut-down caused by a desire to spend less money is different than a government shutdown caused by workers failing to do their jobs – isn’t the effect the same?

Because we pay all the expenses for the campgrounds and do not accept any government money (we operate solely using the gate fees paid by visitors), keeping these facilities open is not at all dependent on government appropriations. As such, the facilities we operate have never been subject to closure in past government shut downs. The Grand Canyon has to close because it is operated with government employees, but the public recreation areas we operate do not.

Or at least that was the position of the Forest Service until last night. However, this morning, the USFS began to take the position we had to close, despite the fact that the law does not require it. Through most of the day I have had to be on the phone pushing back against this bad idea.

At first, I thought it was some sort of scheme to purposefully make the cost of the shutdown worse, by shutting down public recreation facilities that did not need to be shut down. However, I have come to understand that this is likely driven by a need for "consistency." Senior administration officials were concerned it would be confusing to the public if the National Park Service was totally closed but a substantial number of US Forest Service sites remained open. I have spent a lot of time trying to convince folks that it was dumb to close literally thousands of the most popular recreation sites in the country merely in the name of mindless consistency.

Hopefully we will win the day, and we are starting to see some evidence the Forest Service will see it our way, and allow private operators who do not take Federal money or use Federal employees to remain open serving the public during the busy Easter week.

Some Federal agencies are able to maintain their mission over many decades without much change from administrations that come and go. The National Park Service is a good example.

Other agencies, in the desire to get funding, constantly recast their mission based on whatever flavor of the month is hot. Here was one example I cited before, from the NIH, which, amazingly, managed to recraft its mission in the context of climate change to make itself more immediately relevent to the Obama folks:

Remember, the point of this all is not science, but funding. This is basically a glossy budget presentation, probably cranked out by some grad students over some beers, tasked to come up with scary but marginally plausible links between health issues and climate change. Obama has said that climate is really, really important to him. He has frozen a lot of agency budgets, and told them new money is only for programs that supports his major initiatives, like climate change. So, every agency says that their every problem is due to climate change, just as every agency under Bush said that they were critical to fighting terrorism. This document is the NIH salvo to get climate change money, not actual science.

I have worked with the US Forest Service for years as a private operator of many of their recreation sites (for whatever faults they might have, they have been an early innovator on privatization -- without it, they could never have kept all their recreation sites open given their budget constraints). The USFS has always had a mission challenge. They are specifically tasked with balancing five missions -- Environmental preservation, timber, minerals extraction, recreation, and ... I can't remember the other one. Grazing maybe.

In practice, this has meant of late that whatever interest groups among these five who are willing to spend the most time in court are able to shape the USFS mission in their direction, and in practice this has meant environmental groups. As a result, Timber, the main source of USFS funding (from private timber fees) has pretty much been killed in the USFS, creating a funding crisis. With their very logical timber mission gone, the only thing the USFS is unique at is recreation, as it is (surprising to many people) the largest recreation organization in the world. However, this seems to be next on the environmentalists' target list.

So I suppose it is no surprise that the US Forest Service has decided to abandon any sense of long-term mission and simply glom onto whatever is the pet issue of the current administration. For this year, they have latched onto climate:

The Forest Service has issued a national road map for responding to climate change, along with a performance scorecard to measure how well each individual forest implements the strategy.The new blueprint outlines a series of short-term initiatives and longer-term projects for field units to address climate impacts on the country's forests and grasslands.

"A changing global climate brings increased uncertainties to the conservation of our natural resources," Agriculture Secretary Tom Vilsack said in a statement. "The new roadmap and scorecard system will help the Forest Service play a leadership role in responding to a changing climate and ensure that our national forests and grasslands continue to provide a wide range of benefits to all Americans."

The last sentence could be rewritten as "we will continue to do everything we have done in the past but relabel as much as we can as having to do with climate change."

I can only speak to the recreation component, but this is the largest recreation organization in the world. In some sense this new mission is roughly equivalent to the National Park Service hypothetically announcing in the Bush administration that it was going to focus on the war on terror. In many areas of the USFS they, at their own admission, have years or decades of deferred maintenance. From watching them at close range, they very clearly don't have the resources to handle the missions they have already taken on, and so it is going to dedicate its resources to this:

Longer-term assessment will focus on expanding the agency's capacity for assessing the social impacts of climate change, implementing a genetic resources conservation strategy and fortifying internal climate change partnerships.

To the extent that some of this means "monitor forest health," I thought the organization was already doing that. As to the value of the rest of this stuff? Forgetting for a minute if the work should even be undertaken, under what possible allocation of expertise in the Federal bureaucracy does "assessing the social impacts of climate change" fall under the purview of the Forest Service?

The US Forest Service is using a million dollars of its stimulus money to ... fix broken windows! How appropriate. But these are not any broken windows -- these are energy inefficient windows for a visitor center that was closed two years ago and for which no budget exists now or in the future to reopen. Beyond the nuttiness of building a multi-million dollar visitor center, then closing it only a few years after it was built, and then spending a million dollars on its abandoned carcass, no one was available to explain how energy efficient windows will save money in a building that shouldn't be using any energy any more. Remember, for this spending to truly be stimulative, the money has to be spent more productively than it would have been in whatever private hands it was in before the government took it.

But even forget the stimulus question and just consider the issue of resource allocation. I work on or near US Forest Service lands in many parts of the country, and know that their infrastructure is falling apart. Congress loves to appropriate money for new facilities (like shiny new visitor centers), but never wants to appropriate money for capital maintenance and replacements of existing facilities. So there are plenty of needs for an injection of $274 million in capital improvement money. And I know that the USFS has had teams of people working for 6 months on their highest priorities. And after all that work, they allocated almost a half percent of their funds on upgrading windows in an abandoned building?

Postscript: I have vowed not to write about the US Forest Service because I interact with them so much and such interactions would not be improved by my dissing on them online [I am in the business of privitizing the mangement of public recreation and am constantly working to convince the USFS and other recreation providers to entrust more to private companies. One thing many people don't know -- the USFS is by far the largest public recreation provider in the world, far larger than the National Park Service or the largest state park systems]. However, I feel on safe ground here, as I think virtually every frontline USFS employee I know would agree with this post and be equally angry. In recreation at least, this is an organization that begs and pleads to get a few table scraps left over after the National Park Service is done eating, and it is crazy that they spend the few scraps they get this poorly.

And for some reason that nobody seems to be able to understand, the local economies have not adjusted structurally to the new economic reality. I wonder why?

Of the
county's general fund, a full 67 percent -- about $12
million -- had come from the federal timber payments.

Finally, it looks like Congress may cut them off. Good. Because the only thing worse than killing an industry for suspect environmental reasons is continuing to pay that industry for not producing anything.

OK, I will begin this post with what I guess is, for some, a damning admision: My company pays many of its employees minimum wage.

I believe that I have a very honorable relationship with my employees, but for many, particularly on the left, the fact that I pay minimum wage puts me at the approximate moral level of a forced labor camp gaurd. For those of you that feel that way, you might as well move on now because this post will just irritate you further.

I want to present four case studies from my own business as to what happens to workers and consumers when minimum wages go up. For the purpose of this post, I will leave out the philosophical argument of why voters or politicians should even have the right to interfere in the free decision-making between employer and employee, but I certainly addressed it here, in this post. Unfortunately, a large number of voters accept the argument that there is a power imbalance between employer and employee that needs to be moderated by measures like the minimum wage (folks who believe this obviously never have tried to attract and retain quality wokers). Many politicians support minimum wage measures, mainly because it is one of those measures, like protectionism, where the benefits (e.g. Joe got a raise) are much easier to identify than the costs (e.g. Mary lost her job).

Before I get into the case studies, it may be helpful to describe my workers, because in some ways their situation is unique. To run our campgrounds, we mainly employ retired people. Of my 500 workers, well over half are over 60 years old, more than 150 are over 70, some 25 or so are over 80 and a few are even over 90! Most are on social security and medicaire, and many have pensions and retirement health plans. A good number are disabled and have some sort of disability support. While they work slower, they make up for their low productivity in part by their friendliness with customers and their life experience.

Most of my employees travel the country in their RV. They take most of the year off, but many like to work over the summer to make a little money and to pay for their camping site. I give many of them a free or subsidized campsite, worth about $500+ a month, plus all their utilities and then pay them minimum wage for the hours they work. Many are thrilled with these terms - so many that I have a waiting list now of over 300 names of people who are looking for this type work. This list is currently growing by about 10 names a day.

There may be employers somewhere who have a power imbalance over their employees. Some days, I envy them. My employees most all have independent means of support. Further, they all have wheels on their houses, so they can and do pick up and leave if they aren't enjoying their job. And, if they don't like our company, there are thousands of other campground operators who are looking for help.

So why are so many people lining up for minimum wage jobs when lefties and progressives are telling them that they should not want those jobs? Here are some reasons:

They value the amenities that come with the job, including living for free in a beautiful outdoor setting, something it is impossible to value under minimum wage laws

They have other means of support, so the money is incidental. In fact, I get more inquiries from employees asking me to reduce their hours so as not to mess up their social security or diabiloity payments as I do people asking for more pay

They get to work with their spouse as a team. There are not many employers out there that let a husband and wife split up work between them any way they want or even work together - can you imagine such a situation on a GM assembly plant?

They would have a hard time getting hired by anyone else. Very few employers will hire new workers in their sixities, and certainly not older than that. Older workers can be slower and less productive. For $12 an hour, I would have to hire younger workers too, but at minimum wage, I can afford the lower productivity of older workers and gain the benefit of their experience and trustworthiness.

This last point help set the stage for our cases. I love hiring older workers at $5.15 an hour, and they love the job and line up for it. But what happens when I have to pay these less productive workers $6.00 an hour? What about $7.50? What about at $12.00 an hour? Here are some examples of what happens:

Case 1: The jobs just go away

Washington State has one of the higher minimum wages in the country, at $7.35 an hour. What makes the Washington minimum particularly hard to manage is the fact that it has a built-in escalator, such that it rises each year based on an inflation index (as you might imagine, since labor is a major component of most goods and services, this creates a positive feedback loop).

We run a number of campgrounds in Washington under concession contract from the US Forest Service. Most of these campgrounds are both small and very isolated, and are therefore labor intensive. Given local market conditions, it is increasingly difficult to raise fees fast enough to keep up with rising labor rates (as well as labor-linked costs such as workers comp and unemployment) since we are competing against larger private campgrounds that are designed more efficiently and may be closer to local labor. We have effectively given up trying to make money in this area, and will very likely not rebid the contract when it expires. Given USFS experience on other similar contracts in the area, there is a good chance that no private company will bid for the contract, and the campgrounds will revert to USFS operation. In this case, many will likely be closed, and instead of having minimum wage jobs, there will be no jobs left at all.

Case 2: The jobs get outsourced to contractors

In a number of locations, we have been forced by rising minimum wages and associated costs (particulalry workers comp.) to switch some of our cleaning and landscaping duties from our live on-site employees to local contractors. These contractors may pay their workers more than minimum wage, but the workers are often twice as productive as ours, yielding a cost savings for us. When minimum wages are $5.15 an hour, these contractors can't compete with our own workers, but when minimum wages rise over $7.00, as they are across the west coast, this option starts to become attractive.

Case 3: The jobs get automated away

One of the more frustrating situations we have is one government concesion contract where the government has continued to insist that the Service Contract Act (SCA) applies. Like the Davis-Bacon act, the SCA sets minimum wages that contractors have to pay to employees when serving the government (for example, on a contract to clean the bathrooms in a goverment office building). These rates, while ostensibly the market prevailing wages, are in almost every case FAR higher than what a private company would have to pay in the market to get good employees. By specific Labor Department regulation, the SCA typically does not apply to concession contracts (I won't bore you with the details, but more in this series here or email me if you need help in a similar situation, I have been forced to become an expert).

Anyway, on this particular concession we have to pay our living-on-site workers based on the SCA. This means, for example, that someone who sits in a parking lot booth collecting parking fees must be paid something like $12.50 an hour, which translates to a bit over $15.60 when you factor in FICA, SUI and workers comp. Over 2000 hours a year that is $31,200 a year.

A fully automated fee collection machine (which actually does more than the attendent, since it takes credit and debit cards as well as makes change for cash) costs $23,000. Plus, the machine never will sue over wrongful termination, never will discriminate against or sexually harass a customer, never will steal, and never will fail to show up for work.

What would you do? I would prefer to have the person there, and if we put the machine in I will still probably staff the booth on busy summer weekends to help customers out, but over 5 years the machine may save us over $100,000.

Case 4: Prices go up to customers

Last election, Floridians voted themselves a minimum wage increase of $1.00, and worse, voted that the wage will increase each year by a cost of living factor. As a result, on the May 2 effective date, our costs will go up by about 15% in managing the swim areas and campgrounds in that area. Since this is well over our profit margin, prices will also go up by the same amount on the same day. This is unfortunate, because it tends to be lower income people who most enjoy the recreation opportunities we offer, since historically we have been able to keep our costs, and therefore the pricing, so much lower than outrageously expensive attractions like Disney and Universal Studios.

Final Thoughts

I'm not going to cry that my business is doomed by minimum wage increases, because it is not. As you can see above, we have many options for dealing with these changes. What I fear may be doomed, though, is the special relationship our company has always had with older, retired workers. For now, the business model is OK, but there is a point, somewhere between about $7.00 and hour and $10.00 an hour, where rising minimum wages will push us to look for other ways to staff our parks rather other than our traditional use of live-on-site retirees. And that would be sad for everyone.

For more on the topic, Powerline has a nice article today on minimum wage increase proposals in Minnesota. It is astounding to me that people still want to believe the notion that minimum wages don't affect employment. Just look at France and Germany for living proof. Or, consider any other commodity in the market. If the government set a price floor for gasolene, say at $3.00 a gallon, would anyone out there argue that people wouldn't use less gas? But when we try to raise the price floor on labor, the media and politicians with a straight face try to argue that businesses won't use less labor. Or, for the reverse, look at the experience with natural gas and airline travel - the government removed price floors on these commodities in the lates 70s / early 80s and look at how demand has skyrocketed. (update: Powerline has a second post on the topic here)

My company operates campgrounds and other recreational facilities on government lands, and the US Forest Service is our most important partner. We work day-to-day with about 20 or so district rangers, who are the front-line general managers of the Forest.

My observation over time is that USFS district rangers have a nearly impossible job. By their enabling legislation, the USFS is tasked with balancing logging, mining, ranching, recreation, forest health and environmental stewardship in running the forest. In our modern day age of uncompromising special interests and conflict resolution by lawsuit, it is absolutely impossible to make any decision without sending some party scurrying to the courts. In particular, environmental groups have become expert at tying up any decision in court, and attempting to block any of the other competing interests.

The current Administration has introduced new rules intended to make this job easier. As reported in the New York Times via the Commons Blog,

Forest Service officials said the rules were intended to give local foresters more flexibility to respond to scientific advances and threats like intensifying wildfires and invasive species. They say the regulations will also speed up decisions, ending what some public and private foresters see as a legal and regulatory gridlock that has delayed forest plans for years because of litigation and requirements for time-consuming studies.

I hope this is true, because I feel for front line forestry personnel who joined the service mostly because of their love of the outdoors and the environment, and have been forced instead to become amateur lawyers. However, I doubt much will change. I think that intelligent planning and negotiation may be gone forever in working on environmental issues in favor of litigation.